PLANNING : A CHANGING LEGISLATIVE CONTEXT. Western Cape Property Development Forum

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Damian Ramsey
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1 PLANNING : A CHANGING LEGISLATIVE CONTEXT Western Cape Property Development Forum Kobus Munro 7 May 2015

2 Outline 1. Planning Law Reform at a Glance 2. Role of the Courts 3. The SPLUMA Scheme for Planning 4. A new Role for Spatial Planning 5. Decision Making Structures 6. What Does This Mean For You? 7. Outstanding Issues Western Cape Government 2012 Land Use Planning Bill, February

3 1. Planning Law Reform at a Glance

Development Facilitation Act 1996 Planning

2002 Law Reform Project 2004 Land Management

SPLUMA 2013 WC LUPA 2014 National Provincial

4 An Incredible Journey Land Use Planning Ordinance Less Formal Township Establishment Act Rural Areas Act Municipal Ordinance Divisional Council Ordinance Removal of Restrictions Act Black Communities Development Act Physical Planning Act Development Facilitation Act 1996 Planning and Development Act 1999 PDA Amendment Bill, 2002 Law Reform Project 2004 Land Management Act 2007 LUPA process 2008 LUP BILL 2009 SPLUMA 2013 WC LUPA 2014 National Provincial Municipal Western Cape Government 2012 Land Use Planning Bill, February

Act (MSA) WC Land Use Planning Act (LUPA) & Regulations

5 Future Legislative Context Spatial Planning & Land Use Management Act (SPLUMA) National Provincial Municipal Systems Act (MSA) WC Land Use Planning Act (LUPA) & Regulations Municipal Municipal Bylaws on Land Use Planning Western Cape Government

6 THE PLANNING MACHINE SPLUMA REGULATIONS SPLUMA MSA LUPA MSA REGULATIONS Zoning Scheme Bylaws Western Cape Government 2012 Planning CMS Municipal Planning Bylaws LUPA REGULATIONS 6

7 Because the Constitution says so! National Government SPLUMA Provincial Government National Planning pass legislation w.r.t. any matter IGR WC LUPA Provincial Planning pass legislation w.r.t. any matter Excl provincial matters pass legislation w.r.t. provincial matters Municipal Planning Legislative function w.r.t. municipal planning ONLY to: - Regulate exercise of municipalities of their executive function. - Monitor, support, promote LG capacity. Legislative function w.r.t. municipal planning ONLY to: - Regulate exercise of municipalities of their executive function. - Monitor, support, promote LG capacity. Assign & Intervene Municipal IGR IGR Legislative function w.r.t. Municipal Planning Bylaws Western Cape Government 2012 Constitutional Scheme for Planning - June 2013 municipal matters (bylaws) Executive function of municipal planning 7

8 THE MUNICIPAL PLANNING MACHINE SPLUMA SPLUMA Regulations WC LUPA MUNICIPAL PLANNING BYLAWS WC LUPA Regulations MSA & Regulations Western Cape Government 2012 Planning CMS 8

9 2. Role of the Courts

10 Role of the Courts 4 CONSTITUTIONAL CASES: Gauteng Development Tribunal Municipal Planning Maccsands Hurdles Principle Lagoon Bay Regional & Provincial Planning Habitat Council - Appeals Co-ordinate Provincial Powers OTHERS: Shelfplett Municipal Planning & Structure Plans Clairissons Considering Policy Western Cape Government 2012 Land Use Planning Bill, February

11 3. The SPLUMA Scheme for Planning

The SPLUMA Scheme for Planning SDF 5 years Council Approves Highlights Importance of SDF s IZS 5 Years approval by Council Give effect to and be consistent with

12 The SPLUMA Scheme for Planning SDF 5 years Council Approves Highlights Importance of SDF s IZS 5 Years approval by Council Give effect to and be consistent with SDF MPT May not depart from SDF Site Specific Circumstances Appeals to Executive Mayor Western Cape Government 2012 Land Use Planning Bill, February

13 4. A NEW ROLE FOR SPATIAL PLANNING

14 A NEW ROLE FOR SPATIAL PLANNING FROM TO: Structure Plans LUPO - Delegations Structure Plans Physical Planning Act Rigid, Non Flexible, Law-type Planning Instruments Ineffective & probably largest contributing factor for long delays Spatial Development Plans Core Component of IDP (MSA) Facilitating, Enabling - Desirable Outcomes Guidelines, Informants Taken into consideration Western Cape Government 2012 Land Use Planning Bill, February

15 SPLUMA on Spatial Planning and Integration Section 12(6) SDF s must outline specific arrangements for prioritising, mobilising, sequencing and implementing public and private infrastructural and land development investment in the priority spatial structuring areas identified in SDF s

16 Policies, Guidelines & Planning Frameworks (2) A decision-maker may not implement a guideline in a rigid & inflexible manner*, but must allow for an official to be open to persuasion that it would be inappropriate to apply the guideline in a particular instance**. * MEC for Agriculture, Conservation and Environment v Sasol Oil (Pty) Ltd and Another [SCA Case No: 368/ ], not reported. **BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 (W) at 154B

17 Policies, Guidelines & Planning Frameworks (3) MEC for Environmental Affairs and Development Planning v Clairison s CC (408/2012) [2013] ZASCA 82 (31 May 2013) If the MEC was predisposed to refusing the application because it was contrary to the policy of his department that is not objectionable bias. A government functionary is perfectly entitled to refuse an application because it conflicts with predetermined policy. No doubt when exercising a discretion on a matter that is governed by policy the functionary must bring an open mind to bear on the matter, but as this court said in Kemp NO v Van Wyk, that is not the same as a mind that is untrammelled by existing principles or policy. It said further that the functionary concerned was entitled to evaluate the application in the light of the directorate s existing policy and, provided that he was independently satisfied that the policy was appropriate to the particular case, and did not consider it to be a rule to which he was bound, I do not think it can be said that he failed to exercise his discretion (6) SA 519 (SCA) para 1.

18 5. Decision Making Structures

Decision Making Structures Municipal Planning Decisions Municipal Function National Interest (SPLUMA S 52) National Department RDLR Provincial

19 Decision Making Structures Municipal Planning Decisions Municipal Function National Interest (SPLUMA S 52) National Department RDLR Provincial Planning Interest (LUPA S 53) Prov DEADP Municipal Planning Applications: Municipal Planning Tribunal Authorised Official Appeal Executive Authority

20 Provincial Planning Interest LUPA retained a role for WCG in Land Use Planning LUPA Section 53 - Provincial Regional Planning - Agriculture LUPA Regulations (Section 10)- Extent to which WCG will Invoke these provisions Provincial Planning - Land Use Management - Spatial Planning Agriculture - Land Use Management Western Cape Government 2012 Land Use Planning Bill, February

21 6. What does this mean for you? Whilst we now may have constitutionally compliant Planning Laws - will it improve the position for developers

22 Will it be faster? Parallel vs Sequential Application Processes: Structure Plan Amendments Removal of Restrictions EIA s Integrated Application Procedures Delegations Internal Appeals Timeframes Western Cape Government 2012 Land Use Planning Bill, February

23 Will there be Greater Clarity or Predictability New Role for Spatial Development Framework: Greater Buy-in from LM s Better ownership (Provincial Structure Plans) Financial Implications National Interest - Regulations Provincial Interest Regulations (Section 10) Development Contributions Timeframes Western Cape Government 2012 Land Use Planning Bill, February

24 7. OUTSTANDING ISSUES

25 OUTSTANDING ISSUES Section 53 of LUPA (Regulation 10): Provincial Approval Section 25 SPLUMA: A land use scheme must give effect to and be consistent with a municipal spatial development framework Section 42 (1) SPLUMA: In considering and deciding an application a MPT must (a) Be guided by (b) Consistent with: norms and standards,..measures to protect agriculture and national and provincial policies (c) Take into account Western Cape Government 2012 Land Use Planning Bill, February

26 OUTSTANDING ISSUES (2) Regulation 22 SPLUMA: A municipality may provide for an appeal authority to consider an appeal on one or more of the following: (a) the administrative action was not procedurally fair as contemplated in the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000); (b) the merits of the land development or land use application. Regulation 26(2) If the appeal authority revokes a decision of the Municipal Planning Tribunal or authorised official it may remit the matter to the Municipal Planning Tribunal or authorised official or replace the decision with any decision it regards necessary. Western Cape Government 2012 Land Use Planning Bill, February

27 OUTSTANDING ISSUES (3) Section 43 (2) SPLUMA: A conditional approval of an application lapses if a condition is not complied with within five years.. Western Cape Government 2012 Land Use Planning Bill, February

28 MUNICIPALITIES EXPOSED Western Cape Government 2012 Land Use Planning Bill, February

29 Thank you

30 Contact Us Kobus Munro Spatial Planning and Coastal Impact Management Tel: Fax: Atterbury House, Riebeeck Street, Cape Town

CONSTITUTIONAL COURT OF SOUTH AFRICA MINISTER OF LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING, WESTERN CAPE

CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: Case CCT 117/13 MINISTER OF LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING, WESTERN CAPE Applicant and THE HABITAT COUNCIL